Citation Nr: 1615776	
Decision Date: 04/19/16    Archive Date: 04/26/16

DOCKET NO.  10-01 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a left ankle disability.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1976 to July 1979 with additional service in the Army Reserve and the California Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

This matter was previously before the Board in October 2014, when it was remanded for further development.


FINDINGS OF FACT

A current left ankle disability did not have onset during and was not caused by the Veteran's active duty or a subsequent period of active duty for training or inactive duty for training.


CONCLUSION OF LAW

The criteria for entitlement to service connection for a left ankle disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

      Due Process

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  VA provided adequate notice in a letter mailed to the Veteran in August 2010.  

VA has also satisfied its duty to assist.  This duty includes assisting with the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.  All pertinent, identified medical records have been obtained and considered regarding this claim.  The RO requested records from the Social Security Administration in July 2009, but there are no records available from that agency.  The RO has also exhausted all reasonable measures to verify an in-service motor vehicle accident reported by the Veteran.

VA provided examinations in October 2010 and December 2014.  Both examiners considered a full medical history, including the Veteran's lay statements regarding events not noted in his treatment records, and provided an adequate rationale to support their opinions.  Although the Board's October 2014 remand deemed a second examination necessary, it appears the October 2010 examiner considered the left ankle injury noted during a period of ACDUTRA in May 1982.  The October 2010 examiner referenced the undated treatment note apparently associated with the May 1982 injury and explained there was no residual left ankle disability noted on the October 1990 enlistment examination for the California Army National Guard.  This rationale is not inconsistent with the evidence of record; therefore, the October 2010 retains its evidentiary value.  Thus, both examination reports in the claims file are adequate.

The Veteran requested a Travel Board hearing in his November 2011 substantive appeal.  He was scheduled for a Travel Board hearing at the RO in July, but he failed to appear for the hearing.  He has not requested a rescheduled hearing and a defect in notice has not been raised by the record.  Thus, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d).

There has also been substantial compliance with the Board's prior remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  In October 2014, the Board remanded this matter for further development.  The Board directed the AOJ to obtain any reasonably identified outstanding treatment records and to schedule a new VA examination.  Current treatment records were added to the claims file in December 2014 and January 2015.  As previously noted, VA provided a new examination in December 2014.  There is no indication this examination was inadequate.  Although new treatment records were added to the claims file subsequent to examination, a new examination is not necessary because the records obtained in January 2015 are not relevant to the left ankle claim.

As there is no indication that any additional notice or assistance could aid in substantiating this claim, VA has satisfied its duties under the VCAA and proceeds with consideration of the Veteran's appeal.  38 U.S.C.A. § 5103A(a)(2); Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).


      Merits

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated by inactive duty for training (INACDUTRA).  38 U.S.C.A. §§ 101(24), 106, 1110, 1131.

For a member of a Reserve component, ACDUTRA means full-time duty performed by Reserves for training purposes.  INACDUTRA means duty (other than full-time) prescribed for Reserves under section 206 of title 37 of the United States Code or any other provision of law.  In the case of a member of the National Guard, ACDUTRA means full-time duty for training purposes or field exercises under section 316, 502, 503, 504, or 505 of title 32 of the United States Code.  38 U.S.C.A. § 101(22).  INACDUTRA means duty (other than full-time) duty performed by a member of the National Guard under section 316, 502, 503, 504, or 505 of title 32 of the United States Code.  38 U.S.C.A. § 101(23).

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran asserts he has a left ankle disability as a result of an incident in which his left leg was pinned under a "Gama Goat" (a six-wheel-drive semi-amphibious off-road vehicle) at some point during his initial period of active service.  The RO took substantial measures to verify this incident, but there are no service department records related to a motor vehicle accident as described by the Veteran.  Injuries associated with this event are also not included in the Veteran's service treatment records.  Thus, the Veteran's assertion equates to a non-expert or lay nexus opinion, as there is no medical evidence related to this reported event.

The Board finds the Veteran is a somewhat unreliable historian with respect to the Gama Goat incident and gives limited evidentiary weight to his statements regarding this in-service event.  He has variously claimed different ankles were injured as result of this accident throughout the claims process and has been unable to provide a specific time period for the event.  In a March 2009 statement, the Veteran specifically identified his right ankle as the ankle that was injured in this incident and indicated the event occurred in 1977 or 1978.  After a May 2009 rating decision denied service connection for a right ankle disability, the Veteran submitted a statement in which he admitted he does not remember which ankle was injured in this incident.  In August 2009, he again identified the right leg as the leg that was pinned under a vehicle and indicated the incident occurred in 1978 or 1979.  He has more recently asserted his left ankle was injured in this incident.  While the Veteran may have been involved in this type of incident in service, or one of a similar nature, his inability to accurately recall the details of the incident erode the probative value of his statements.  Further, his inability to consistently identify the ankle that was involved in the incident tends to show that there is not a history of symptoms present ever since any such in-service incident.  Therefore, his statements associating a current disability to the Gama Goat incident are of diminished credibility and of little probative value in this regard.  

To the extent that he otherwise provides a nexus opinion, his opinion is not competent evidence.  As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case.  Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case.  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding.  Id.  In that earlier decision, the Federal Circuit explained "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4.  Also of note is that the Court of Appeals for Veterans Claims (Court) has explained that non-expert witnesses are competent to report that which they have observed with their own senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence.

In this case, the Veteran's assertion that he has a current left ankle disability as a result of an incident in which his left leg was pinned under a Gama Goat during his period of active service does not constitute competent evidence.  While the Veteran is competent to discuss observable symptomatology such as pain, he is not competent to diagnosis the underlying malady if it is also not capable of lay observation.  The Veteran has not asserted he had a simple condition such as a broken leg as a result of this event.  He has readily admitted x-rays after the reported incident were normal.  Thus, the condition was not observable through expert means at the time of the injury, much less lay observation.  Consequently, he is also not reporting a contemporaneous medical diagnosis because his reports indicate a chronic left ankle condition was not diagnosed at that time.  Finally, he is not reporting contemporaneous symptoms related to the injury that supports a later diagnosis by a medical professional.  In a March 2009 statement, the Veteran reported his ankle "started bothering [him] a few years ago."  The Veteran does not possess the requisite skill or expertise to attribute left ankle pain that manifested several years after service to an event or injury in service.  None of the circumstances identified by the Federal Circuit when lay nexus evidence is sufficient apply in this case.  See Jandreau, 492 F.3d at 1377.  Thus, the Veteran's statements regarding the Gama Goat incident are insufficient to establish his service connection claim.

There is also no medical evidence that establishes the Veteran has a current left ankle disability as a result of this incident.  October 2010 and December 2014 VA examiners both presumed this incident occurred as reported by the Veteran; however, both examiners stated any injuries that may have resulted from this event were acute and transitory and did not result in a permanent left ankle disability.  The examiners noted that the Veteran did not seek additional treatment for a residual left ankle injury throughout the remainder of his period of active service; that a left ankle condition was not noted on the Veteran's April 1979 separation examination report; and that the Veteran did not self-report residual left ankle symptomatology on his April 1979 report of medical history.

The October 2010 and December 2014 examiners also considered treatment records related to a left ankle sprain during a period of ACDUTRA in May 1982.  The October 2010 examiner noted the Veteran did not report left ankle symptomatology during an October 1990 enlistment examination for the California Army National Guard and a condition was not noted upon examination; therefore, it was unlikely as left ankle disability resulted from prior trauma.  The December 2014 examiner added there were several years of podiatry treatment post-service with no mention of left ankle symptomatology.  Thus, both examiners considered the May 1982 injury and determined it did not result in a current disability.

The October 2010 and December 2014 examiners also both determined x-rays of the Veteran's left ankle were unremarkable, specifically noting there were no degenerative changes affecting the left ankle.  Therefore, there is not a chronic disease affecting the left ankle.  The October 2010 examiner diagnosed the Veteran as having a left ankle sprain, but determined the current condition was not related to the injury noted in the Veteran's treatment records or an event.  The December 2014 examiner found there was no current disability; therefore, it appears the left ankle sprain noted in October 2010 resolved prior to the December 2014 examination.

In sum, the Veteran does not have a chronic disease affecting the left ankle, such as arthritis; therefore, service connection cannot be established on a presumptive basis or through the related concept of a continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (2013).  VA examiners in October 2010 and December 2014 considered the isolated note regarding treatment for a left ankle sprain during a period of ACDUTRA in May 1982 and determined this injury did not result in a current left ankle disability.  Both examiners also considered the Veteran's lay reports regarding an in-service event in which his left leg was reportedly pinned under a military vehicle and determined this incident also did not result in a current left ankle disability.  Moreover, the Board finds the Veteran's statements regarding this event are of low probative value in light of his inability to recall details of the event and inconsistent statements regarding the ankle that was involved.  There is no indication from the record the Veteran was injured during a subsequent period of INACDUTRA.

Ultimately, the preponderance of evidence is against a finding that the Veteran has a current left ankle disability as a result of an in-service injury or disease.  Thus, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim for service connection for a left ankle disability must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

Entitlement to service connection for a left ankle disability is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs